Outlaws, Pirates, Judges: Judicial Activism as an Expression of Antiauthoritarianism in Anglo-American Culture

This article will argue that the rejection of what scholars otherwise view as controlling legal authority lies at the heart of judicial activism. Furthermore, it will argue that judicial activism itself channels the antiauthoritarian current in American culture (and in English culture predating its importation to America). Part II will examine the extensive scholarly writings already existing on judicial activism in order to identify common themes and to explore to what extent scholars have arrived at a consensus definition of judicial activism. Part III will then show that judicial activism may better be understood within the context of law as culture and will offer an updated definition of judicial activism that accounts for a cultural component. Part IV will then delve into expressions of antiauthoritarianism in broader, non-legal Anglo-American culture to demonstrate under what circumstances Anglo-American culture actively encourages antiauthoritarian behavior and attitudes. It will do so specifically through the lens of recurring cultural motifs of outlaws and pirates. Part V will then analyze four sets of judicially activist decisions to gauge the extent to which the decisions align with culturally appropriate exercises of antiauthoritarianism. The first set of decisions will consist of United States Supreme Court decisions that scholars commonly describe as activist. If judicial activism is indeed a cultural phenomenon, however, then one would expect it to be more commonplace than a handful of high profile and oft-discussed Supreme Court decisions cherry picked from throughout history. Therefore, the second and third sets of decisions will comprise United States Supreme Court cases from the 2017-2018 term and cases from courts other than the United States Supreme Court. The fourth set of decisions to be analyzed will be a selection of "problem cases," which are activist cases that even apologists of judicial activism decry, and non-activist cases that nonetheless face criticism for their results. Ultimately, this article will argue that assessing judicial activism through the cultural prism of acceptable antiauthoritarianism provides a tool to differentiate between proper and improper judicial activism.